GIFT ACCEPTANCE AND DISCLOSURE

PRO BONO REPRESENTATION OF CITY IN LAWSUIT
WHERE CITY COMMISSIONER IS NAMED IN SUIT
IN HIS OFFICIAL CAPACITY AS COMMISSIONER

To: John J. Hearn, City Attorney (City of Coral Springs)

SUMMARY:

Under the circumstances presented, pro bono legal services provided to a city in a lawsuit naming one of the city's commissioners in his official capacity would not be a gift to the commissioner under Section 112.3148, Florida Statutes. CEO 13-3 and CEO 91-21 are referenced.¹

QUESTION:

Would pro bono (free of charge) legal services provided to a city in a lawsuit naming one of the city's commissioners in his official capacity be considered gifts to the city, or gifts to the commissioner personally?

Under the circumstances presented, the legal services would not be a gift to the commissioner personally, but, rather, would be a gift to the government agency (the city); thus, the commissioner would not be subject to the solicitation, acceptance, and disclosure provisions of Section 112.3148, Florida Statutes.

As City Attorney, in behalf of a City Commissioner, you write that in the wake of a shooting at a public school located in a neighboring municipality, the City Commission has been discussing its legal options in regard to gun control measures and is considering the filing of a lawsuit to challenge provisions of Section 790.33, Florida Statutes,² a preemption statute concerning firearms and ammunition. It is anticipated that the lawsuit would be a declaratory action, including constitutional challenges, and that the style of the case will name the Commissioner in his official capacity as a City Commissioner, in order to ensure that procedural objections to the lawsuit cannot be made due to the absence of Commissioners as plaintiffs and to obtain maximum possible declaratory relief. You relate that a nonprofit gun safety organization's litigation team and a private law firm would provide free representation of the City and the Commissioner throughout the lawsuit. Thus, you inquire as to whether this scenario would constitute a gift to the Commissioner under Section 112.3148, Florida Statutes. Inasmuch as free legal services unquestionably constitute a gift under Section 112.3148, see Section 112.312(12)(a)12., Florida Statutes, defining "gift" to include "services provided by persons pursuant to a professional license or certificate," for which equal or greater consideration is not given within ninety days of receipt, the issue is whether the Commissioner (as a "reporting individual"), rather than the City as a government entity, will be receiving the free legal services.

Under the situation presented, we find that the legal services are a gift to the City and not to the Commissioner, for purposes of Section 112.3148. While we have found that a direct, personal receipt by a public officer of gifts (e.g., transportation, lodging), followed by a somewhat subjective claim by the officer of acceptance of the items in behalf of his public agency, constitutes a gift to the public officer and not to the government agency,³ we do not see that to be the case here. Rather, we view the instant situation to be more akin to our decisions in which up-front funding or reimbursement was provided to a government agency in conjunction with the agency's decision to engage in governmental activity via the participation of its officers, decisions in which we did not find that the officer had received a gift. Among these decisions, see CEO 13-3⁴ (funds received by city from third parties then used to pay for official travel by city officials) and CEO 91-21 (county supervisor of elections office reimbursed by outside entity for expenses of supervisor's travel to view voting equipment considered for purchase). In such decisions, as in the instant matter, present was a good faith, transparent, local government choice to engage the government entities in certain actions, via the necessary use and inclusion of government officers, preceded or followed by value flowing from others into the governments' use and possession.

Accordingly, under the situation presented, we find that the provision of pro bono legal services to the City is not a gift to the Commissioner under Section 112.3148, Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2018, and RENDERED this 25th day of April, 2018.

____________________________________

Michelle Anchors, Chair

^[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2]The statute includes possible monetary penalties imposed on individual local government officials, local government liability up to $100,000 in certain lawsuits, and removal by the Governor of local public officers.

^[3]See, for example, In re Jonathan A. Mantay, Complaint No. 03-081, COE Final Order No. 06-315 (2006).

^[4]While Question 1 of CEO 13-3 cites Mantay, supra, in finding that consumable items taken directly by a public officer from a third party are gifts to the officer, Question 2 of that opinion finds the gift to be to the agency, not the officer, in a situation analogous to that of your inquiry.